Transcript of "Another Potential use for USCIS form I-924: How about as an EXEMPLAR I-829 for materially changed projects?"
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Another Potential Use for USCIS Form I-924:
How About as an Exemplar I-829 for
Materially Changed Projects?
By Joseph P. Whalen (July 25, 2014)
When reading about some of the difficulties that some Regional
Centers may be having as more and more come closer and closer to their
first wave of I-829 filings, I gave that situation some more thought too. In
the past I have written about the need to stay within the scope of one’s
approved Regional Center parameters and not to make material changes.
However, since I wrote about that, USCIS has backed off their former
hardliner policies and will readily accept a project that is materially
changed and that ventures outside the previously approved parameters, to
a point.1 By that I mean that even after the I-526s have been approved and
the ground has broken, IF for some reason a project does materially
change, THEN all is not lost for the EB-5 investors.
USCIS is now much more willing to accept the fact that the lifting of
conditions is ultimately a matter of proving the end results rather than
laboriously staying on course in accordance with the original plans
submitted with the I-526. The lifting of conditions is controlled by statute.
INA § 216A [8 U.S.C. § 1186b] Conditional permanent resident status
for certain alien entrepreneurs, spouses, and children.
* * * * *
(d) Details of petition and interview
(1) Contents of petition
Each petition under subsection (c)(1)(A) of this section shall contain facts
and information demonstrating that the alien—
(A)(i) invested, or is actively in the process of investing, the requisite
(ii) sustained the actions described in clause (i) throughout the period of
the alien's residence in the United States; and
(B) is otherwise conforming to the requirements of section 203(b)(5) [8
U.S.C. § 1153(b)(5)] of this title.
While an altered project focus as to industry may be found acceptable in the I-829 stage, I highly doubt that
USCIS would accept a hugely distant geographic diversion. The geographic scope can only be stretched just so far
and must make some sort of sense. IF the geographic area is so far away, THEN USCIS might say that it should be
a new Regional Center all together! A “Hollywood, CA” based RC should not try to sponsor a project in
“Hollywood, FL”. You know what I mean? Don’t be ridiculous about it!
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USCIS Form I-829 is supposed to be filed within the 90 day period
prior to the two-year anniversary of the conditional status. Simply put, that
period begins 90 days before the expiration date on the permanent resident
card. I firmly believe that no Immigration Judge (IJ) wants to have to try to
deal with an EB-5 case where the applicant is attempting to submit new
evidence of having met the requirements for the lifting of conditions. I am
confident in that belief due to the complexity of the issues but even more so
by the way that both the statute and regulations so easily allow a case to be
handed back from the IJ to USCIS even after the creation of DHS.
INA § 216A [8 U.S.C. § 1186b] Conditional permanent resident status for
certain alien entrepreneurs, spouses, and children.
* * * * *
(d) Details of petition and interview
* * * * *
(2) Period for filing petition
(A) 90-day period before second anniversary
Except as provided in subparagraph (B), the petition under subsection
(c)(1)(A) of this section must be filed during the 90-day period before the
second anniversary of the alien's lawful admission for permanent residence.
(B) [Late] petitions for good cause
Such a petition may be considered if filed after such date, but only if the
alien establishes to the satisfaction of …[USCIS]… good cause and
extenuating circumstances for failure to file the petition during the period
described in subparagraph (A).
(C) Filing of petitions during removal
In the case of an alien who is the subject of removal hearings as a result of
failure to file a petition on a timely basis in accordance with subparagraph
(A), the Attorney General2
may stay such removal proceedings against an
alien pending the filing of the petition under subparagraph (B).
See also 8 CFR § 1216.6 (a)(5) which gives ample opportunity for the IJ to
give the case back to USCIS. That regulation states, in pertinent part:
…. [T]he alien may request a review of the determination during deportation
proceedings…… The director may deem the petition to have been filed prior to the
second anniversary of the alien's obtaining conditional permanent resident status and
accept and consider a late petition …….. If the late petition is filed prior to jurisdiction
vesting with the immigration judge in deportation proceedings and the director excuses
the late filing and approves the petition, he or she shall restore the alien's permanent
resident status, remove the conditional basis of such status, and cancel any outstanding
order to show cause in accordance with § 242.7 of 8 CFR chapter I. If the petition is not
An IJ may easily return a case to USCIS or USCIS may simply choose to delay the issuance of, or cancel, an NTA
and accept a late I-829 or even a new I-526.
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filed until after jurisdiction vests with the immigration judge, the immigration judge
may terminate the matter upon joint motion by the alien and the Service.
And now for something completely different! Do you think that
USCIS has taken enough black-eyes over mindless and meaningless rigidity
that it is finally open-minded enough to actually allow something that
would not only be a great improvement to its customers but to itself as
well? I am willing to at least entertain the thought. I think that IPO may be
willing to seriously consider this idea at the moment. They are currently
deeply reviewing the EB-5 regulations, actively reviewing the great many
suggestions put forth, and seem much more open to improving things as
they re-write or “update” the EB-5 implementing regulations.
I envision a couple of very obvious situations where an EXEMPLAR
I-829 filed as an “Amendment”3 on form I-924 would be most useful. First
of all, in a situation as described above, where there has been a significant
change to the plans originally put forth, it would be best to try to tackle the
situation head-on in one concerted effort to explain the new, current, or
“resultant project”. IF there are still enough jobs to go around and all the
EB-5 money is accounted for and was spent to create those jobs, THEN
conditions should be lifted. Rather than that oddball situation, I think that
an EXEMPLAR I-829 should be used as matter of routine. In that it would
be helpful to the USCIS adjudicator to get a professionally-prepared
(audited by a CPA?), comprehensive, and organized package of supporting
documentation, how could USCIS object? I think than anyone who would
object to getting a nice, neat, organized filing would also enjoy placing their
head in a vice and tightening the screw! Anyway, when there have been
changes, great or small or perhaps even none-at-all, I would prefer to see an
updated economic impact analysis and rather than call it an “updated
business plan”, I think that a “follow-up” or “hindsight” “report of
activities” would be really helpful. That is especially true if accompanied by
a full set of supporting documents as “corroborating evidence”. That packet
of corroborating evidence is something that is needed anyway, even
with ZERO changes to the original plans! The RC-affiliated EB-5
investors have to submit evidence to show that the previously
stated assumptions have been realized. Please think about it and
contact USCIS about it, too!
That’s my two-cents, for now!
I don’t like that terminology either but since it is what is being used for the I-526, I am using it in order to avoid
confusion. That said, I’d call it a Dummy I-829, just like I prefer the term Dummy I-526.
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About the Author
Joseph P. Whalen, Independent EB-5 Consultant,
Advocate, Trainer & Advisor
238 Ontario Street | APT. 6 | Buffalo, NY 14207
Phone: (716) 604-4233 or (716) 768-6506
web http://www.slideshare.net/BigJoe5 or
DISCLAIMER: Work is performed by a non-attorney independent business
consultant and de facto paralegal. It is the client's responsibility to have any and all
non-attorney work products checked by an attorney. I provide highly-
individualized training based on consultation with my clients. I serve Regional
Center Principals and their counsel, potential EB-5 investors, immigration attorneys,
and project developers. I am not an attorney myself although I have trained numerous
attorneys and INS/USCIS adjudicators in complex issues within immigration and
nationality law when I was an adjudicator there for many years. I do not prepare forms,
write business plans, or create economic analyses. I do review them for clients
prior to submission and suggest corrections and/or modifications to run by
your attorney and investment advisor.
NOTE: I have over a decade of experience as an adjudicator for INS and
USCIS and direct EB-5 Regional Center Adjudications experience having
been instrumental in reviving, greatly enhancing, and expanding the EB-5
Regional Center Program for USCIS.
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